Chapter 8: Public Law Protection for People at Risk
- This Chapter considers whether there is a need for reform of emergency
powers for public officials to be able to intervene in the lives of persons
with certain types of disability, including the power to arrange that
they be removed from their homes. It should be noted that the Law Commission's
definition of vulnerable adults in this area is wider than the definition
of those without capacity which applies to other areas of their final
Report. This Chapter reflects that more widely defined client group. The
Government seeks views on the Law Commission's recommendations, and wishes
to ensure that, if the law in this area is to be reformed, there is an
appropriate balance between protecting vulnerable adults, and respect
for individual rights.
- Background
Defining the client group
A duty to investigate
Emergency intervention
Miscellaneous
-
Background
- 8.1. The Law Commission's main aim in this area was to make provisions
to ensure that people without capacity, and other vulnerable adults, constituting
a broader group of people who may not be able to protect themselves from
harm, were protected from abuse and neglect. They regarded the existing
powers as draconian and thought that this resulted in the powers being
inadequately used.
- 8.2. The recommendations of the Law Commission Report are consistent
with the community care system. They also attempt to balance the need
to ensure adequate protection is available to vulnerable people with the
need to be sensitive to the needs of carers and those without capacity,
who might both want and be able to take responsibility for some decisions
concerning their welfare.
- 8.3. The Law Commission thus recommended that:
- social services authorities should have a new duty to investigate
cases of possible neglect or abuse; and
- they should have short term powers to deal with the protection of
people they believe to be at risk, including powers to deal with those
who attempt to obstruct them in their exercise of this duty.
- 8.4. The proposals met with a positive response on consultation, but
some carers' groups were concerned, wanting greater focus on access to
services rather than enforcement procedures. The former is outside the
scope of these proposals.
- 8.5. Under the Registered Homes Act 1984, local authorities and health
authorities have powers of inspection, investigation and enforcement in
relation to residential care homes and nursing homes respectively. While
there is no reason to exclude care home residents from the duty proposed
for local authorities, in practice it is expected that where there is
suspicion of abuse in a care home, the most appropriate course of action
will be through the Registered Homes Act powers rather than powers discussed
in this chapter. It is important that all residents of the care home should
be protected, not just the individual who may have suffered abuse.
- 8.6. The Government considers that there may be merit in some of the
recommendations made in this area, but is not convinced that there is
a pressing need for reform. Whilst it is important to protect vulnerable
adults, the Government also believes that regard should be had to the
rights of individuals to live in isolation if they so chose, even if at
some degree of risk to themselves. The question of fitness to object could
also be very difficult to judge. A number of initiatives have been undertaken
to address the particular problem of elder abuse, and these cannot yet
be fully evaluated. In the light of these concerns, the Government would
particularly welcome views from local authorities, carers and mental health
and learning disability organisations, on whether there is a need for
legislation along the lines recommended by the Law Commission. If it is
felt that such legislation is necessary, views would be welcomed on the
practicalities of the proposals.
- Q89. Is there a need for legislation in this area?
Defining the client group
- 8.7. The Law Commission have suggested a broad definition of a vulnerable
person, as someone of 16 years or over who:
- is or may be in need of community care services by reason of mental
or other disability, age or illness; and
- who is or may be unable to take care of him or herself, or unable
to protect him or herself against significant harm or exploitation.
- 8.8. The Law Commission did, however, stress that these powers should
not be used to invade the rights of competent people. They envisaged the
powers being necessary as a last resort and, more particularly, where
another person was attempting to obstruct social services authorities
attempts to undertake an assessment or provide care.
- Children
- 8.9. The Law Commission recommended that children under 16 be excluded
because they would be covered by the emergency provisions of the Children
Act 1989. There will be some overlap with the Children Act provisions
for young people of 16 and 17, and also (potentially) with the wardship
jurisdiction. The Law Commission acknowledged this by including relevant
services under the Children Act within their definition of community care
services.
- 8.10. The views of respondents would be welcomed.
- The meaning of "harm"
- 8.11. The Law Commission built on the significant harm test included
in the Children Act in defining this term. They suggested that "harm"
should be taken to include not only ill-treatment (including sexual abuse
and forms of ill-treatment which are not physical), but also "the
impairment of, or an avoidable deterioration in, physical or mental health;
and the impairment of physical, intellectual, emotional, social or behavioural
development". These latter categories may be very important to an
individual's ability to recover from an illness or have the best possible
quality of life. It is thus very much a provision to protect the general
well-being and development of the vulnerable person.
- 8.12. The Government is minded to accept the principle of the recommendations
relating to the meaning of harm, but would welcome views on the Law Commission's
proposed definition of harm.
- Q90. Is the proposed definition of harm appropriate?
A duty to investigate
- 8.13. The Law Commission recommended the strengthening of existing provisions
by introducing a duty on social services authorities to make enquiries
where they have reason to believe that a vulnerable person in their area
is suffering or likely to suffer significant harm or serious exploitation.
This enquiry would be to determine whether this person is suffering or
is likely to suffer such harm or exploitation and, if so, whether services
should be provided or action taken to protect the person concerned. The
Law Commission have restricted such powers to when a vulnerable person
is at risk and not a more general duty.
- 8.14. Respondents to the Law Commission's consultation exercise asked
for a specific reference to "exploitation" to be included in
the proposals. This is already an issue in financial matters and might
also occur in personal welfare or health matters, for example where a
carer chooses not to provide the care needed on grounds of cost or some
other motive. The Court of Protection report that exploitation does occur
and it is thus likely that such safeguards will be required.
- 8.15. The Law Commission recommended that only social services authorities
should have this duty. They feared that to extend this responsibility
might lead to people falling between two stools, with authorities each
believing the other intended to act.
- 8.16. The Government seeks views on the practical implications of this
proposal. It is likely that this function is already in practice carried
out by social services authorities and that it is appropriate for them
to have the power to undertake such investigations.
- Q91. Should social services authorities be required to investigate
allegations of abuse or neglect of an incapacitated, mentally disordered
or vulnerable adult?
- Q92. Should any other organisations, such as the police, hospital
managers, or the trustees of charities, be given a similar power?
- 8.17. The Law Commission also recommended that the local authority should
be able to have access to information from a variety of statutory bodies(1)
which might help them in their enquiries including in other regions.
- 8.18. The views of respondents on this would be welcomed.
- Authorised officers
- 8.19. The Law Commission recommended that social services authorities
should authorise certain officers to undertake such work.
- Q93. Is it appropriate or practical for social services authorities
(or any other organisation that it is thought should conduct investigations)
to nominate authorised officers?
Emergency intervention
- 8.20. The Law Commission recommended a step-by-step approach to the
exercise of such powers. These might need to be telescoped in an emergency.
- 8.21. The first of these steps would enable a local authority to gain
access to premises where they believe a person at risk is living. This
would extend only to reasonable times of the day and would include authority
to inspect the premises concerned and interview the person believed to
be at risk in private. The only restriction on this would be where the
person concerned is believed to object, unless there is a question as
to their suffering from a mental disability. The Law Commission's view
was that officers should be obliged to give proof of their status.
- Entry warrants
- 8.22. If an authorised officer is prevented from undertaking this duty,
the Law Commission recommended that they should be able to apply for a
warrant authorising a constable, accompanied by the authorised officer,
to enter. Again, the local authority must believe the person to be at
risk and they should not apply where they have reason to believe that
the person concerned has the capacity and wish to reject this intervention.
A warrant should be sought only if it is necessary to enable this investigation
to be carried out. The proposal is similar to the power to issue search
warrants under section 102 of the Children Act 1989.
- 8.23. The Law Commission recommended that any removal of the person
at risk from the premises in question should only occur after an investigation
had been completed.
- 8.24. The Government considers that there might be a case for telescoping
the-step-by step nature of these provisions where the person is in imminent
danger of significant harm if he or she is not removed from their place
of residence immediately and does not object to such a removal.
- Q94a. Should there be provision for telescoping these procedures
in certain circumstances?
- Q94b. How might such telescoping work?
- Assessment orders
- 8.25. Where a person is believed to be at risk and is not believed to
object or be capable of a reasoned objection, the Law Commission recommended
that a local authority should be able to apply for an order for an assessment
of this person where they are not otherwise able to do so. This equates
to similar provision for child assessment orders under the Children Act
1989. As this provision is designed purely to allow assessment to take
place in the short term, the Law Commission recommended that such orders
should be time limited to a period of eight days. Some respondents argued
that this period should be capable of extension to ensure that the assessment
could be carried out. The Law Commission rejected this as the eight days
would commence from the date specified in the assessment order, not the
date the order was actually made. The Law Commission were also concerned
to make the intervention as limited as possible.
- 8.26. The Government accepts the principle of this recommendation, subject
to the following question:
- Q95. Are there any circumstances in which the period of eight days
should be extended?
- Medical assessment
- 8.27. The Law Commission recommended that any medical examination should
be subject to the usual provisions, namely that the patient would have
to consent to treatment unless there was a specific order of the court
dispensing with such consent. In deciding to make such a ruling, the court
would need to consider the patient's capacity to consent or refuse such
an examination and whether it is in their best interest. It is suggested
that the local authority would need to specify the details of the components
of the assessment planned when applying for the court order as they are
currently required to do under the Children Act 1989.
- Removal from home
- 8.28. The Law Commission recommended that the removal of the vulnerable
person from home in order to undertake an assessment should require the
specific authorisation of the court.
- 8.29. The Government accepts these recommendations in principle, but
would welcome views on the likely practical implications of the removal
of the vulnerable person from the home. For instance, consideration will
need to be given as to who should be notified of the removal, and how
bills etc would be paid.
- Q96. How would removal from the home work in practice?
- Temporary Protection Orders
- 8.30. The Law Commission recommended that the court be given the power
to make temporary protection orders. While these may broadly equate with
emergency protection orders under the Children Act, the Law Commission
were keen to introduce a different term to take account of the sensitivities
of those who might regard using the same wording as "infantilising"
vulnerable adults. Such an order would only be made where a vulnerable
person is at risk if they are not removed to or kept in protective accommodation,
and where the applicant does not know or believe that the person objects
to the order. Again there would be the question of whether the person
had the capacity to object to this removal in full knowledge of the potential
implications.
- 8.31. The Law Commission recommended that only minor amendments would
be needed to the terminology of place of safety orders to comply with
the extended jurisdiction. They were concerned to remove the reference
to police stations as an unnecessary source of "protective accommodation".
- 8.32. The Law Commission recommended that a temporary protection order
should be time limited to eight days and should not be capable of extension.
Emergency protection orders under the Children Act 1989 may be extended
once for a maximum period of seven days.
- 8.33. The Government accepts the principle of this recommendation but
seeks views on whether such orders should be capable of extension and
on the need to retain police stations as a form of protective accommodation.
- Q97. Should it be possible to extend temporary protection orders?
- Q98. Is there a need to retain police stations as a form of protective
accommodation?
- 8.34. The Law Commission recommended that the court could, in the making
of such an order, also give directions for assessment where it is necessary.
This accords with current practice in the Children Act 1989 and may be
necessary to determine what long term plans are appropriate to protect
the best interests of the person concerned. The Government therefore accepts
this recommendation in principle.
- 8.35. It was recommended that explicit reference should be made to the
need to return the person to the place from which they were removed as
soon as it is practicable and consistent with his or her interests. This
is consistent with the principles of community care and should go some
way to ensuring there is no delay in dealing with the person's ongoing
needs. This return must, however, be consistent with the patient's interests
- this will cover the situation where the person does not wish to return
home or does not feel able to decide.
- 8.36. The Law Commission recommended that, given the emergency nature
of such orders, they must be capable of being made ex parte.
- 8.37. The views of respondents on this would be welcomed.
- Discharge of a temporary protection order
- 8.38. The Law Commission suggested that the person concerned, any donee
of a CPA, and any court appointed manager should be able to apply for
the discharge of a temporary protection order where this has been made
ex parte. The Law Commission had originally suggested that the person
with whom the vulnerable person had been living should also be able to
apply - respondents to consultation suggested this was inappropriate because
this person may have been the abuser.
- 8.39. The Government is concerned that these categories of person are
too narrow and that to exclude the person with whom the vulnerable person
resided may be inappropriate, as they may not have been involved in any
abuse. A further question is whether there should be any time limit as
to how soon an application for discharge can be made. Under the Children
Act 1989, no application for the discharge of an emergency protection
order can be made within 72 hours of the order.
- Q99. Should the categories of person able to apply to discharge
a temporary protection order be widened?
- Q100. Should there be a time limit specifying when an application
for discharge can be made?
- Appeals
- 8.40. The Law Commission recommended that, as with emergency protection
orders under the Children Act 1989, there should be no need for appeals
against these orders, because:
- the person concerned or any substitute decision maker could be heard
at the hearing or apply for the discharge of an order where this had
been made ex parte; and
- social services authorities could simply apply for a new order with
new evidence if they were turned down.
- 8.41. The views of respondents on this would be welcomed.
- An offence of obstruction
- 8.42. All those who responded in writing to this point, supported the
creation of such an offence, as long as it is clear that the vulnerable
person him or herself cannot be charged with such an offence. The Law
Commission recommended that such an offence should include the obstruction
without reasonable cause of an authorised officer in the exercise of his
or her powers or any person acting pursuant to a temporary protection
or assessment order. It was recommended that such an offence should be
summary only, punishable by fine or imprisonment for a maximum of three
months. The local authority would have the power to prosecute.
- 8.43. The views of respondents on this would be welcomed.
-
Miscellaneous
- Power to assist in legal proceedings
- 8.44. The Law Commission recommended that the local authority should
be able to assist the vulnerable person in bringing proceedings under
the private law. The Government is not convinced that this is an appropriate
function for local authorities and believe that there are other options,
such as reference to be made to the court for the appointment of a manager.
- Q101. Should the local authority be able to assist a vulnerable person
in bringing proceedings under private law?
- The protection of property
- 8.45. Under section 47 of the National Assistance Act 1948, the local
authority have an obligation to protect the moveable property of people
admitted to hospital, or other accommodation. The Law Commission recommended
that this obligation should also extend to occasions where a vulnerable
person was removed from their home, including temporary protection and
assessment orders.
- 8.46. The Law Commission also recommended that local authorities should
have the power to take reasonable steps for the protection of the property
and affairs of a person who is without capacity to protect them and for
whom the local authority provides alternative accommodation. They stopped
short of making this a more extensive duty, as there might be more appropriate
ways of doing this, such as a court appointed manager.
- 8.47. The Government accepts this recommendation in principle, but seeks
views on the practicalities of these proposals.
- Q102. Are the proposals for the protection of property likely to
prove practical?
- Guardianship under the Mental Health Act
- 8.48. The Law Commission provisionally proposed that (subject to minor
amendments) the system of guardianship should remain in place to enable
those who might otherwise have had to remain in hospital to be able to
live in the community. The majority of respondents to consultation agreed
with this view.
- 8.49. The Law Commission did, however, suggest some minor amendments,
but did not include them in their draft Bill, given the Department of
Health's then recent deliberations on this issue. First, there was a suggestion
that the appointment of those currently known as guardians should be restricted
to social services authorities and health authorities, given that private
individuals' responsibilities would be covered by the wider jurisdiction
proposed by the Law Commission. The Law Commission also recommended that
a guardian should be given an additional power to convey the patient to
a residence specified by the guardian. This was unanimously supported
on consultation. The Law Commission also recommended that the powers of
the Mental Health Act Commission should be extended to include those received
into guardianship. The Department of Health will look at recommendations
for changes in guardianship alongside the wider consideration of changes
in the Mental Health Act when there is a fundamental review of the Act.
-
- 1 Those listed in clause 37(5) of the Law
Commission's draft Bill are (a) any local authority; (b) any local education
authority; (c) any local housing authority; (d) any health authority;
and (e) any person authorised by the Secretary of State for the purposes
of this section.
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